Kiel v. Ott

151 S.W. 182, 168 Mo. App. 40, 1912 Mo. App. LEXIS 405

• Court: Missouri Court of Appeals
• Decided: November 12, 1912
• Status: Published

Opinion

REYNOLDS, P. J.

This is an action by plaintiff to recover damages alleged to have been sustained in consequence of being thrown from his horse, it being charged that plaintiff had wrongfully and unlawfully and without right, piled or caused to be piled a lot of cordwood on a public road in such manner as to create an obstruction calculated to frighten horses of ordinary gentleness and that while plaintiff was travelling along the road, riding a horse of ordinary gentleness, the horse became frightened at the piles of wood and jumped and threw plaintiff to the ground, thereby seriously injuring him, for which injuries sustained plaintiff claims judgment in the sum of $1500.

The answer was a general denial.

On trial before the court and a jury, the jury returned a verdict for defendant, from judgment on which plaintiff, filing his motion for a new trial and saving exception to that being overruled, has duly perfected his appeal to this court.

As to the facts it may be said that plaintiff’s testimony tended to show that he received certain injuries by being thrown from his horse while he was riding along the road and between the piles of wood alongside of it. Defendant attacked the character of plaintiff for truth and veracity and also introduced evidence tending to show that the horse had not jumped; that measuring the tracks of the horse in the road showed the horse had neither jumped nor run off, as claimed by plaintiff.

The errors assigned are three: First, to the court refusing to strike out the testimony of a -witness named; second, giving to the jury an improper instruction; and third, to the overruling of plaintiff’s motion for a new trial.

The first assignment of error cannot be sustained. The witness referred to being under examination on part of defendant, and testifying as to conversations between himself and plaintiff concerning the transaction, after having testified that in that conversation plaintiff had made a certain statement, was asked what, if 'anything further, plaintiff had then said. Whereupon the witness answered: “Well, he said this: ‘You know as well as P do that Ott is a good man and a good church member, and has lots of friends, and if you prove my reputation it will be a job for me to gain this. You know that as well as I do.’ ” It is stated in the abstract that plaintiff thereupon moved the court to strike out the answer of the witness to the last question,. “ as having no bearing on the issues in the case and being improper evidence tending to prejudice the jurors against plaintiff.” This is the motion referred to, which the court overruled and to which ruling plaintiff duly excepted. It will be noted that the question itself was not objected to when asked. The objection was made to the answer and for the reasons above. That answer might possibly have been objected to as not responsive to the question asked, although this is doubtful, but no such objection was made. The objection as raised is not tenable. The answer did bear on the issues as to plaintiff’s own statements and on his character, and purported to give the whole conversation, as the witness was asked to do. That it may have influenced the jury in passing upon plaintiff’s testimony unfavorably to plaintiff, does not render it improper.

The instruction complained of is to the effect that-if the jury found and believed from the evidence that plaintiff was injured on the date named, in the public road in front of the premises of defendant, by reason of any cause other than the frightening of the horse at the wood pile mentioned in the evidence, then the verdict will' be for- defendant. It is objected to this instruction that there is no evidence tending to show any other cause of injury than the frightening of the horse. It is true that there is no direct evidence of any other cause, but there was evidence tending to show that the horse had not been frightened and had not jumped on the occasion referred to. Prom that it would seem to follow that the jury had a right to infer it was not the frightening and jumping of the horse that caused the injury. Apart from this however, even conceding the proposition of the learned counsel for plaintiff, that there was a lack of evidence of any other cause, we are not prepared to say, on reading all the testimony in the case, that this instruction was harmful or in any manner misled the jury. It was undoubtedly understood by the jury to mean that to find for plaintiff, they must find that he sustained his injuries in the manner and from the cause alleged by him.

This disposes of all the assignments of error except that plaintiff’s motion for new trial, it is claimed, was ‘ improperly overruled. It is argued in support of this assignment that the motion for new trial should have been sustained by reason of the reception of the evidence and the giving of the instruction above referred to. We have disposed of these grounds. It is also claimed that the verdict of the jury is against the weight .of the evidence to such an extent as to indicate that it is the result of prejudice, influencing the jury against plaintiff. In support of this ground, we are referred to Walton v. Kansas City, Port Scott & Memphis Railroad Co., 49 Mo. App. 620, l. c. 627. In that case it is there stated that in Price v. Evans, 49 Mo. 396, Judge Bliss impliedly states that it is error in tbe trial court to refuse a new trial where tbe preponderance of evidence against tbe verdict is so strong as to raise tbe presumption of prejudice, corruption or gross ignorance on tbe part of tbe jury. Our court held in tbe Walton case that tbe facts in it clearly called for an application of that rule. Without determining whether that rule, said to be drawn from tbe Price case, in tbe light of many decisions recognizing tbe right to pass upon tbe weight of evidence as resting solely in tbe trial court, is now in force, it is sufficient to say that tbe present case does not call for its application. We cannot say that tbe preponderance of tbe evidence in this case is so strong as to raise tbe presumption of prejudice, corruption or gross ignorance on tbe part of tbe jury. Plaintiff’s case rested almost exclusively on bis own testimony, and bis credibility as a witness was very seriously attacked by several witnesses.

Tbe judgment of tbe circuit court is affirmed.

Nortoni and Caulfield, JJ., concur.